Smt H.Dakshayini Vs Smt. Indramma

SMT. H. DAKSHAYINI WIFE OF SRI. VISHAKANTA MURTHY AGED ABOUT 58 YEARS R/AT. CARE OF SRI. B. NAGARAJA NO.134/3, 1ST FLOOR BULL TEMPLE ROAD CHAMARAJPET BANGALORE-560 018.

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ALSO AT: R K 11 LLYODS ESTATE LLOYDS ROAD ROYAPETTAH CHENNAI-600 014.

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…PETITIONER

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(BY SRI. G.B. MANJUNATH, ADV.,)

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AND:

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SMT. INDRAMMA WIFE OF SRI. K. HONNAPPA AGED ABOUT 76 YEARS RESIDING AT NO.267 15TH CROSS, 8TH MAIN ROAD WILSON GARDEN BANGALORE-560 030.

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SMT. H. DEVIKA DAUGHTER OF SRI. K. HONNAPPA

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NC: 2026:KHC:20928 W.P. No.29026/2019

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HC-KAR

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WIFE OF SRI NAGARAJA AGED ABOUT 49 YEARS GAYATHRI JEWELLARS N H 206, B H ROAD GUBBI-572216 TUMKUR DISTRICT.

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H. KUMAR SON OF SRI. K. HONNAPPA AGED ABOUT 52 YEARS.

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H. MANJUNATH SON OF SRI. K. HONNAPPA AGED ABOUT 45 YEARS.

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THIRD AND FOURTH RESPONDENTS RESIDING AT NO.267 15TH CROSS, 8TH MAIN ROAD WILSON GARDEN BANGALORE-560 030.

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…RESPONDENTS

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(BY SMT. G. CHANDRAKALA, ADV., FOR R1 TO R4)

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THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE RECORDS OF O.S.NO.6270/2008 IN THE COURT OF THE XXXVIII ADDL. CITY CIVIL JUDGE, BANGALORE (CCH-39). SET ASIDE THE ORDER ON I.A.NOS.13 TO 15 DATED APRIL 15, 2019, PASSED IN O.S.NO.6270/2008 IN THE COURT OF THE XXXVIII ADDL. CITY CIVIL JUDGE, BANGALORE (CCH 39) UNDER ANNEXURE-P & ETC.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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NC: 2026:KHC:20928 W.P. No.29026/2019

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HC-KAR

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ORAL ORDER

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This petition is filed challenging the order dated 15.04.2019 passed on I.A.Nos.13 to 15 in O.S.No.6270/2008 by the XXXVIII Additional City Civil and Sessions Judge, Bengaluru (for short 'the Trial Court').

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Sri.G.B.Manjunath, learned counsel for the petitioner submits that the petitioner has filed a suit for partition and permanent injunction. In the said suit, after recording of the evidence, the petitioner filed an application in I.A.No.12 to issue summons to the Administrator / Chief Medical Officer, Sindhi Hospital, Bengaluru, to produce the case history, discharge summary, etc., which came to be rejected. Hence, the plaintiff has filed I.A.No.13 to re-open the case, I.A.No.14 to permit the plaintiff to lead rebuttal evidence and I.A.No.15 to re-call the order dated 09.03.2015 passed by the Trial Court. These applications came to be rejected by the Trial Court under the impugned order on the ground that the matter is posted for final arguments. It is

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HC-KAR

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submitted that the rebuttal evidence of the plaintiff is necessary as the plaintiff has specifically pleaded that Sri.K.Honnappa, wife of defendant No.1 and father of defendant Nos.2 to 4 was not in a good state of mind to execute the gift deed dated 04.05.2006 in favour of the defendant No.4. The said aspect is required to be adduced in the evidence which has not been properly considered by the Trial Court. In support of his contentions, he placed reliance on the decision of the Hon'ble Supreme Court in

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the case of K.K. VELUSAMI Vs. N. PALANISAMI¹ .

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Hence, he seeks to allow the petition.

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3. Per contra , Smt.G.Chandrakala, learned counsel

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appearing for the respondents supports the impugned order of the Trial Court and submits that the petitioner has filed the suit way back in the year 2008 and she has adduced the evidence in the matter. The said witness has been cross-examined. The defendants have adduced the evidence and the matter is posted for arguments. At this

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1 (2011) 11 SCC 275

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HC-KAR

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stage, the applications are filed to re-open the case, to permit the plaintiff to adduce further evidence and to recall the order dated 09.03.2015, which is impermissible. Hence, he seeks to dismiss the petition.

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I have heard the arguments of the learned counsel for the petitioner, the learned counsel for the respondents and meticulously perused the material available on record.

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The petitioner has filed O.S.No.6270/2008 for

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the relief of partition and permanent injunction. In the said suit, the respondents have filed a detailed written statement denying the plaint averments. The Trial Court framed the issues viz. issue Nos.1 to 8. The parties to the proceedings have adduced the evidence and the matter was posted for arguments. At this stage, the plaintiff has filed applications in I.A.Nos.13 to 15 to re-open the case, to permit the plaintiff to lead rebuttal evidence on issue Nos.3 to 5 and to re-call the order dated 09.03.2015. A

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HC-KAR

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perusal of issue Nos.3 to 5 indicate that the issues pertain to the registered gift deed dated 04.05.2006 executed by Sri.K.Honnappa in favour of the defendant No4. The said issues were framed as on 06.09.2013 and thereafter, the plaintiff examined herself as PW-1. PW-1 was crossexamined by the defendants. The defendants adduced the evidence and the matter was posted for arguments. It is to be noticed that the plaintiff has filed I.A.No.12 seeking to summon the Medical Officer of the Sindhi Hospital, Bengaluru, and also sought a prayer to produce the case history, discharge summary, all diagnosis, post mortem report and the entire case file of Sri.K.Honnappa. The contention of the plaintiff is that the said Honnappa was not in a good state of mind on the date of execution of the gift deed. The material available on record indicates that the death of Honnappa was much prior to adducing of the evidence and the said application in I.A.No.12 was rejected by the Trial Court which has attained finality. A perusal of the present applications filed by the petitioner in

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NC: 2026:KHC:20928 W.P. No.29026/2019

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HC-KAR

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I.A.Nos.13 to 15 does not indicate the necessity to adduce

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further evidence or rebuttal evidence by PW-1. The grounds in the said applications are bereft of details. The Trial Court, taking note of the fact that the trial was concluded and already sufficient opportunity was provided to the plaintiff to adduce evidence, proceeded to reject the applications. I do not find any error in the order passed by the Trial Court.

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With regard to the decision relied on by the learned counsel for the petitioner in the case of K.VELUSAMI, referred supra, the said decision is the enunciation of law on the power of the Courts under Section 151 of the Code of Civil Procedure, 1908 (for short, 'the CPC'). The Hon'ble Supreme Court has considered that Order XVIII Rule 17A of the CPC was deleted. However, such a power is always available to the Trial Court under Section 151 of the CPC to be exercised. The Hon'ble Supreme Court has remanded the matter back to the Trial Court as in the said case, the plaintiff had

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HC-KAR

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placed sufficient evidence which he could not produce at the time of his evidence. On the said ground, the Hon'ble Supreme Court has remanded the matter back to the Trial Court with a direction to consider the application afresh.

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In the case on hand, a perusal of the application does not indicate as to why the plaintiff intends to adduce further evidence / rebuttal evidence. A perusal of the affidavit only indicates that the gift deed is suspicious and the Sri.K.Honnappa was not in a good state of mind to execute the said gift deed. The said fact was well within the knowledge of the plaintiff when she had adduced the evidence on issue Nos.3 to 5.

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For the aforementioned reasons, I am of the considered view that the writ petition is devoid of merits and the same is accordingly rejected.

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Sd/(VIJAYKUMAR A. PATIL) JUDGE

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RV

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List No.: 1 Sl No.: 14

Smt H.Dakshayini v. Smt. Indramma

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Smt H.Dakshayini v. Smt. Indramma

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